Brown v. Mattingly , 3 B. Mon. 592 ( 1843 )

Judge Marshall

delivered, the opinion, of the Court

It seems to this Court, that the Circuit Court erred in instructing the jury for the plaintiff, that upon their finding the facts assumed in the instruction, the plaintiff had a right to the fifty dollars, as soon as the mares were tried, unless he had committed a fraud: Referring, as we should do, the terms of the contract as proved, to the printed offer of the defendant in regard to the purchase of mule colts, (and perhaps even without that reference.) we think the clear implication is that the $50 was to be paid at the time at which the colts, if any, would, according to the ordinary course of treatment, be weaned. On the ground of this error, as well as of surprise, as made out by the affidavit filed, a new trial should have been granted.

Wherefore, the judgment is reversed and the cause remanded for a new trial.